PART 2
ASSISTANCE

19 Investigation of proceeds of ICC crime

Where the Scottish Ministers receive a request from the ICC for assistance—
in ascertaining whether a person has benefited from an ICC crime ; or
in identifying the extent or whereabouts of property derived directly or indirectly from an ICC crime,
the Scottish Ministers may direct such person as they may authorise to apply on behalf of the ICC for an order or warrant under schedule 5 to this Act (which makes provision for production or access orders and the issuing of search warrants).

SCHEDULE 5

INVESTIGATION OF PROCEEDS OF ICC CRIME

PART 1
PRODUCTION OR ACCESS ORDERS

(1) An order under this Part of this schedule may be made by the sheriff on an application by a person authorised for the purpose under section 19 of this Act.

(2) Any such application may be made on an ex parte application to a sheriff in chambers.

2 (1) The sheriff may make an order under this Part of this schedule if satisfied that there
are reasonable grounds for suspecting—
(a) that a specified person has benefited from an ICC crime ; and
(b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.

No such order shall be made if it appears to the sheriff that the material to which the application relates consists of or includes items subject to legal privilege.

Paragraphs 3 and 4 below specify the descriptions of order that may be made.

3(1) If it appears to the sheriff that there is in a specified person's possession, custody or power specified material, or material of a specified description, to which the application relates, the sheriff may order such person either—
(a) to produce the material to a constable within a specified period for the constable to take away (a "production order") ; or
(b) to give a constable access to the material within a specified period (an "access order").

The specified period shall be seven days beginning with the date of the order unless it appears to the sheriff making the order that a longer or shorter period would be appropriate in the particular circumstances of the application.

Where an access order is made in relation to material on any premises the sheriff may, on the application of a constable, order any person who appears to the sheriff to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

In sub-paragraphs (1) and (2) above "specified" means specified in the order.

Where a production or access order is made by virtue of paragraph 4 below, the provisions of this paragraph shall have effect subject to the modifications specified in that paragraph.

4(1) A production or access order may be made in relation to a person if the sheriff thinks it is likely that material to which the application relates is in the person's possession, custody or power within the period of 28 days beginning with the date of an order.

(2) A production or access order may also be made in relation to material consisting of or including material which is expected to come into existence within that period.

(3) In that case it must specify a person within sub-paragraph (1) above.

(4) Where a production or access order is made by virtue of this paragraph—
the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into the person's possession, custody or power ; and
paragraph 3 above has effect with the modifications mentioned in sub-paragraph (5) below.

(5) The modifications are—
that the references in paragraph 3(1) above to material in the possession, custody or power of the specified person shall be read as references to the material that comes into the possession, custody or power of the specified person ; and
that the reference in paragraph 3(2) above to the date of the order shall be read as a reference to the date of the notification required by sub-paragraph (4)(a) above.

(6) In this paragraph "specified" means specified in the order.

5 (1) The Scottish Ministers may by regulations make provision as to the discharge and variation of orders under this Part of this schedule.

(3) Regulations under sub-paragraph (1) above shall be made by statutory instrument ; and any such instrument shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

6(1) Sub-paragraphs (2) to (4) below have effect with respect to the effect of an order under this Part of this schedule.

(2) Where the material to which the order relates consists of information contained in a computer—
a production order has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible ; and
an access order has effect as an order to give access to the material in a form in which it is visible and legible.

(3) An order under this Part of this schedule does not confer any right to production of, or access to, items subject to legal privilege.

(4) Subject to section 39 of the 2001 Act, the order has effect notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

7 (1) An order under this Part of this schedule may be made in relation to material in the possession, custody or power of a government department.

An order so made shall be served as if the proceedings were civil proceedings against the department.
Where the material concerned might for the time being be in the possession, custody or power of an officer of the department, an order may require such officer, whether named in the order or not, to comply with it.

In this paragraph "government department" means a public department within the meaning of the Crown Suits (Scotland) Act 1857 (c.44) and any part of the Scottish Administration.


PART 2
SEARCH WARRANTS

A search warrant may be issued under this Part of this schedule by a sheriff on an
application made by a person authorised for the purpose under section 19 of this Act.

9 (1) A search warrant issued under this Part of this schedule authorises any constable—
(a) to enter and search the premises specified in the warrant ;
to seize and retain any material found on the search that is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the warrant was issued ; and
for the purposes of exercising the powers mentioned in sub-paragraphs (a) and (b) above, to open lockfast places on premises specified in the warrant.

(2) The warrant does not confer any right to seize material that consists of or includes items subject to legal privilege.

10 (1) The sheriff may issue a search warrant under this Part of this schedule in the cases mentioned in sub-paragraphs (2), (3) and (5) below.

(2) The case is where the sheriff is satisfied that a production or access order made in relation to material on the premises has not been complied with.

(3) The case is where the sheriff is satisfied —
that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime ;
that there are grounds for making a production or access order in relation to material on the premises ; and
that it would not be appropriate to make a production or access order in relation to the material for any of the reasons mentioned in sub-paragraph (4) below.

(4) The reasons are—
that it is not practicable to communicate with any person entitled to produce the materia l;
that it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated ; or
that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.

(5) The case is where the sheriff is satisfied—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime ;
(b) that there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application but which relates to the specified person, or to the question whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime ; and
is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made ; and
(c) that any of the circumstances mentioned in sub-paragraph (6) below apply.

(6) The circumstances are
that it is not practicable to communicate with any person entitled to grant entry to the premises ;
that entry to the premises will not be granted unless a warrant is produced ; or
that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the
jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.